ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of
December 30, 2009 (the “Escrow Agreement”),
by and among certain shareholders of Iron Eagle Group, a Nevada Corporation,
that are identified on Schedule A to this Agreement (“Iron Eagle
Shareholders”), Pinnacle Resources, Inc. (“Pinnacle”) and
Xxxxxxx Xxxxxx & Xxxx LLP, a New York limited liability partnership having
an office at 2 Grand Central Tower, 000 Xxxx 00xx Xxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Escrow
Agent”).
WHEREAS, Pinnacle and Iron Eagle
Shareholders have entered into and executed that certain Share Exchange
Agreement, dated as of December 30, 2009 (the “Agreement”), pursuant
to which Iron Eagle Shareholders have agreed to exchange shares of common stock
they own in Iron Eagle Group for an aggregate of 373,491,825 shares
of restricted common stock, $.00001 par value per share, of Pinnacle (the “Shares”);
WHEREAS, pursuant to the terms of the
Agreement, Iron Eagle Shareholders have agreed to deliver the Shares to the
Escrow Agent, to be held in Escrow and released to the Iron Eagle Shareholders
under certain conditions set forth in the Agreement; and
WHEREAS, upon the execution and
delivery of the Agreement, Iron Eagle Shareholders are required to deliver to
the Escrow Agent all certificates evidencing the Shares (the “Certificates”) and
stock powers with respect to the Shares duly endorsed in blank (together with
the Certificates, the “Escrow documents”);
and
WHEREAS, the parties hereto hereby
agree that their respective rights to the Escrow Documents will be governed by
the terms hereof.
NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained in the Agreement herein, the parties
agree as follows:
1. Concurrently
with or prior to the execution of this Escrow Agreement, Iron Eagle Shareholders
have delivered the Escrow Documents to Escrow Agent.
2. The
Escrow Documents shall be held in escrow by Escrow Agent at such location as
Escrow Agent shall select until delivered to Pinnacle or Iron Eagle Shareholders
in accordance with the terms hereof.
3. (a) Upon
receipt of a written notice from Iron Eagle Shareholders and Pinnacle to release
the Escrow Documents, or a portion thereof, to either Iron Eagle Shareholders or
Pinnacle, or as otherwise jointly directed by Iron Eagle Shareholders and
Pinnacle, the Escrow Agent shall promptly thereafter deliver the Escrow
Documents, or a portion thereof, as directed by Iron Eagle Shareholders and
Pinnacle.
(b) If
the Escrow Agent receives notice from Pinnacle (“Pinnacle Notice”)
requesting release of the Escrow Documents, or a portion thereof, Escrow Agent
shall promptly forward the Pinnacle Notice to Iron Eagle
Shareholders. If the Escrow Agent does not receive written notice
from Iron Eagle Shareholders contesting the instructions provided in the
Pinnacle Notice within ten (10) days after Iron Eagle Shareholders’ receipt
thereof from the Escrow Agent, the Escrow Agent shall deliver the Escrow
Documents, or a portion thereof, in accordance with the instructions provided
for in the Pinnacle Notice.
(c) If the
Escrow Agent receives notice from Iron Eagle Shareholders (“Iron Eagle Shareholders
Notice”) requesting release of the Escrow Documents, or a portion
thereof, Escrow Agent shall promptly forward the Iron Eagle Shareholders Notice
to Pinnacle. If the Escrow Agent does not receive written notice from
Pinnacle contesting the instructions provided in the Iron Eagle Shareholders
Notice within ten (10) days after Pinnacle’s receipt thereof from the Escrow
Agent, the Escrow Agent shall deliver the Escrow Documents, or a portion
thereof, in accordance with the instructions provided for in the Iron Eagle
Shareholders’ Notice.
4. Should
any party (other than Escrow Agent) institute any action or proceeding to
enforce this Agreement or any provision hereof, or for damages by reason of any
alleged breach of this Escrow Agreement or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party in any such action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys’ fees, incurred by the prevailing party
in connection with such action or proceeding and the enforcement of any judgment
issued in connection therewith or settlement thereof. This provision
is not intended to be applicable to Escrow Agent or payment of its counsel’s
fees, which are specifically addressed in other provisions of this Escrow
Agreement.
5. Notwithstanding
any other provision herein, Escrow Agent shall have the right but not the
obligation to consult counsel and to require and receive such written
certifications or instructions from any party hereto as Escrow Agent reasonably
deems necessary or appropriate before taking any action hereunder.
6. If
any dispute concerning (a) receipt or disbursement of the Escrow Documents then
held hereunder and/or (b) this Escrow Agreement arises between any of the
parties hereto, or if Escrow Agent is uncertain as to Escrow Agent’s obligations
hereunder, Escrow Agent shall have the right but not the obligation to refrain
from taking any action other than to continue to hold the Escrow Documents then
held hereunder in escrow until otherwise directed by a final order or judgment
of a Nevada State Court or by a written agreement signed by the parties
hereto.
7. Escrow
Agent may assume the genuineness of any document or signature which appears to
Escrow Agent to be genuine (whether or not original or
photocopy). Escrow Agent shall have no obligations other than those
specifically set forth herein. Escrow Agent shall have no liability
to any party hereto except with respect to actions or omissions taken or
suffered by Escrow Agent in willful disregard of this Escrow Agreement or
involving gross negligence.
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8. Escrow
Agent shall not be obligated to, but may, institute legal proceedings of any
kind that it deems in its reasonable judgment to be necessary or appropriate,
including but not limited to a legal proceeding or action in a court of
competent jurisdiction to determine Escrow Agent’s obligations hereunder or to
seek permission to surrender the Escrow Documents in court and be relieved of
all further obligations hereunder.
9. The
signatories hereto acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience; that Escrow Agent shall
not be deemed to be the agent of any of the parties; and that Escrow Agent shall
not be liable to any of the parties hereto for any act or omission on Escrow
Agent’s part unless taken or suffered in willful disregard of this Escrow
Agreement or involving gross negligence.
10. Any
notice or other communication hereunder shall be sent by registered or certified
mail, return receipt requested, or sent by an overnight express delivery service
(e.g. Federal Express) or by messenger (requiring the signature of the recipient
thereof), to the party for which intended at the address first stated above for
that party or at such other address of which that party gives notice as provided
herein with copies simultaneously sent by like delivery or fax to Escrow Agent.
Notices shall be deemed given on the date said notice is
received. Escrow Agent’s address for serving any notice or other
communication hereunder on Escrow Agent is as first stated above and any such
notice or communication shall be sent as provided in the preceding
sentence.
11. Escrow
Agent may resign hereunder (i) upon 10 days’ written notice to the parties
hereto, subject to the appointment of a substitute escrow agent by the parties
hereto and the acceptance by the substitute escrow agent of such appointment, or
(ii) following the petitioning of a court of competent jurisdiction seeking the
appointment of a substitute escrow agent, upon the appointment by such court of
a substitute escrow agent and the acceptance by such court appointed substitute
escrow agent of such appointment, or (iii) upon the surrender of the Escrow
Documents then held by Escrow Agent with any court having
jurisdiction.
12. This
Escrow Agreement shall terminate upon Escrow Agent’s delivery of all of the
Escrow Documents held hereunder or the transfer of such Escrow Documents to a
substitute escrow agent or a court of competent jurisdiction, in either case,
pursuant to the terms and conditions of this Escrow Agreement, whether to the
parties provided for herein, or in the case of the transfer of the Escrow
Documents then held hereunder, to a substitute escrow agent or a court of
competent jurisdiction or to such other persons as shall be lawfully entitled to
same, whereupon Escrow Agent’s obligations, responsibilities and liability
hereunder shall terminate.
13. The
signatories hereto acknowledge the fact that Escrow Agent, as a law
firm, is an Iron Eagle Shareholder, represents certain other Iron
Eagle Shareholders, and Pinnacle and the Iron Eagle Shareholders irrevocably
waives any conflict of interest arising therefrom, and hereby consent to Xxxxxxx
Xxxxxx & Xxxx LLP acting as attorney on behalf of one or all of the Iron
Eagle Shareholders, its principals and/or the Escrow Agent, including in a dual
capacity, in any dispute as to the delivery of any of the Escrow Documents or
any other dispute between the parties relating to this Escrow Agreement, or
otherwise, whether or not Escrow Agent is then in possession of the Escrow
Documents.
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14. Iron
Eagle Shareholders and Pinnacle, jointly and severally, hereby agree to
indemnify the Escrow Agent for, and to hold it harmless against, any loss,
liability or expense incurred by Escrow Agent, including reasonable attorneys’
fees, arising out of or in connection with any actions taken by it or any
omission by it in connection with its duties pursuant to this Escrow Agreement,
including attorneys’ fees, costs and expenses (in all cases, including legal
fees at Xxxxxxx Xxxxxx & Fein LLP’s then normal time rates attributable to
defending itself) against any claim of liability hereunder or in bringing any
action or proceeding (including, without limitation, the enforcement of any
judgement issued in connection therewith or settlement thereof) required or
permitted to be brought by it hereunder, except if incurred by reason of the
gross negligence or willful misconduct of Escrow Agent. The
provisions of this Section 14 shall survive the termination of this Escrow
Agreement. Escrow Agent shall be entitled to compensation at its
customary rates for all services and disbursements rendered or incurred by it
under this Escrow Agreement.
15. This
Escrow Agreement may not be changed, modified or terminated, nor may any
provision hereof be waived, except by an agreement in writing executed by all of
the parties hereto. This Escrow Agreement constitutes the entire
understanding and agreement among the parties hereto in connection with the
particular subject matter hereof, notwithstanding any prior understandings or
agreements, oral or written, with respect to such subject matter.
16. If
any term or provision of this Escrow Agreement or the application thereof to any
person or circumstance shall to any extent be held invalid or unenforceable by a
court of competent jurisdiction, such invalidity shall not affect any other
provision of this Escrow Agreement or the application of the invalid provision
in circumstances in which same would be valid, it being agreed that the
provisions of this Escrow Agreement are severable.
17. THIS
ESCROW AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEVADA WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF. THE PARTIES HERETO EACH HEREBY IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF THE STATE OF
NEVADA, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
OR BASED UPON THIS ESCROW AGREEMENT OR THE SUBJECT MATTER
HEREOF. EACH PARTY HERETO CONSENTS TO THE SERVICE OF PROCESS IN ANY
SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH PARTY AT ANY
TIME AT ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT TO SECTION
10. EACH PARTY HERETO, TO THE EXTENT IT MAY LEGALLY DO SO, HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE
OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS ESCROW AGREEMENT,
OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THIS ESCROW AGREEMENT OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. EACH PARTY HERETO, TO THE EXTENT IT MAY LEGALLY DO SO,
HEREBY AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17 WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER PARTY HERETO TO THE WAIVER
OF ITS RIGHT TO TRIAL BY JURY.
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18. This
Escrow Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors and
assigns.
19 This
Escrow Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but, when taken together, shall constitute one
agreement.
[Signature
Page Follows]
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IRON
EAGLE SHAREHOLDERS:
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By:
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Xxxx
Xxxxxxx
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By:
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Xxxxx
Xxxxxxx
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By:
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Xxxxxxx
X. Xxxxx
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By:
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June
X. Xxxxxx
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By:
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Xxxxxx
X Xxxxx
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By:
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Nevada
Irrevocable Trust
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By:
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XXXXXXX
XXXXXX & FEIN, LLP
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By:
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PINNACLE
RESOURCES, INC.:
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By:
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Xxxx
X. Xxxxxx, President
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XXXXXXX
XXXXXX & FEIN LLP,
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as
Escrow Agent
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Name:
Xxxx Xxxxxxx
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Title:
Special
Counsel
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SCHEDULE
A
IRON
EAGLE GROUP, INC. EXCHANGE WITH PINNACLE RESOURCES, INC.
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Name
|
Address
|
Pinnacle Shares to be Received and
Delivered
to the Escrow Agent
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||||
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Xxxx
Xxxxxxx
|
000
Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx
Xxxx, XX 00000
|
99,149,630 | ||||
|
Xxxxxxx
X. Xxxxx
|
0000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
99,149,630 | ||||
|
Xxxxx
Xxxxxxx
|
000
Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx
Xxxx, XX 00000
|
99,149,630 | ||||
|
Nevada
Irrevocable Trust
|
0000
X. Xxxxxx Xxx.
Xxxxx
000
Xxx
Xxxxx, XX 00000
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34,286,550 | ||||
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June
X. Xxxxxx
|
59
Xxxxxxx Rancn Parkway
Suite
B - 4296
Xxxx,
XX 00000
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34,286,550 | ||||
|
Xxxxxx
X Xxxxx
|
00000
Xxxxxxxx Xx Xxxxx 000
Xxx
Xxxxxxx, XX 00000
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3,734,918 | ||||
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Xxxxxxx
Xxxxxx
|
Two
Grand Central Tower
000
Xxxx 00xx Xxxxxx , 00xx Xxxxx
Xxx
Xxxx, XX 00000
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3,734,918 | ||||
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Total
Shareholdings
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373,491,825 | |||||
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